Kokesh Footnote Three Notwithstanding: The Future Of The Disgorgement Penalty In Sec Cases, Stephen M. Bainbridge

Washington University Journal of Law & Policy

This article, by Professor William D. Warren of UCLA School of Law, analyzes Kokesh v. SEC where the Supreme Court held that disgorgement – a tool used by the SEC to recover ill-gotten gains through the courts – was a penalty rather than a remedy for the purposes of determining the appropriate statute of limitations. Warren contends that Kokesh raises questions about the validity of disgorgement as a sanction, especially considering issues of SEC authority, judicial power, and interstitial lawmaking.

The Road Not Taken: A Comparison Of The E.U. And U.S. Insider Trading Prohibitions, Franklin A. Gevurtz

Washington University Journal of Law & Policy

This article, by Professor Franklin A. Gevurtz of the University of the Pacific’s McGeorge School of Law, explores the divergent approaches between the United States and the European Union with respect to the reach of insider trading laws. Finding that the current scope of E.U. law on insider trading is substantially similar to pre-1980 U.S. Law, Gevurtz compares the outcomes of similar high-profile U.S. and E.U. insider trading cases to illustrate just how different the outcomes are and where the U.S. would be had the Supreme Court kept a broad view on the law ...

Washington University Journal of Law & Policy

This article, by Joan MacLeod Heminway of The University of Tennessee College of Law, explores the “Robin Hood scenario” as it applies to insider trading law and whether a fiduciary violates the law when acting under pure altruism. Through an exploration of the functions of improper information sharing, the theoretical underpinnings of academic literature, and the link between theory and statute, Heminway cast doubt on the laws applicability to insider trading cases involving intentional unauthorized sharing of material nonpublic information by a fiduciary with a stranger for purely altruistic purposes.

Insider Information And The Limits Of Insider Trading, Yesha Yadav

Washington University Journal of Law & Policy

This article, by Professor Yesha Yadav of Vanderbilt Law School, examines modern information flows by which securities are bought and sold and argues that the instantaneous processing of market information by high-frequency trading institutionalizes a group of “structural insiders” who can take advantage of information earlier than those on the outside. Yadav analogizes the advantages enjoyed by these structural insiders to those found in the context of corporate insider trading and asks why each is subject to different treatment under the law.

Washington University Journal of Law & Policy

This note examines a Sixth Circuit ruling against the Federal Communication Commission which found that North Carolina and Tennessee had the authority to limit expansion of municipal broadband services. Schwarze argues that Tennessee v. FCC greatly interferes with the mission of the FCC to spread communications access and proposes a solution by way of a partnership among state governments, municipalities, and private broadband companies to increase access to high-speed internet to areas that lack such services.

Washington University Law Review

Price fixing is antithetical to a free-market economy. Competitive markets supply goods and services to consumers at the lowest efficient prices. Unfortunately, many businesses would prefer not to compete because they can increase their profits by conspiring to raise price. By refraining from competition, each firm in a price-fixing cartel can maximize its profits at the expense of its customers. Price-fixing conspiracies injure consumers by reducing output below the efficient level and transferring wealth from consumers to conspirators. Fortunately, cartels are often unstable because each member of the conspiracy can maximize its short-term profits by cheating on the cartel agreement ...

Patent Pool Outsiders, Michael Mattioli

Articles by Maurer Faculty

Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.

The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics ...

Articles

This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.

We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test ...

Washington University Journal of Law & Policy

This article, by former Commissioner of the SEC, Co-Director of the Dennis J. Block Center for the Study of International Business, and Professor at Brooklyn Law School Roberta S. Karmel, argues that the misappropriation doctrine of insider trading law, introduced in Chiarella v. United States, is unsound. Karmel argues that the doctrine has been misapplied to cases where defendants did not steal information belonging to others and in cases where defendants based their trading on an independent investigation of facts. In addition, Karmel highlights the difficulty in distinguishing legitimate research by industry professionals and insider information. Further, Karmel finds that ...

Insider Trading And The Myth Of Market Confidence, John P. Anderson

Washington University Journal of Law & Policy

This article, by Professor John P. Anderson of Mississippi College School of Law, challenges the market-confidence justification for insider trading regulations by questioning its sociopsychological impact and assessing empirical evidence. Anderson finds that public perception surrounding insider trading and its effect on the market raises a problem of false consciousness – whether the perception is true or false, the market impact is the same. Further, Anderson finds that empirical evidence on the impact of public perception of insider trading on the market is inconclusive and that a proper test is likely unfalsifiable. Finally, Anderson cautions against a reliance on the market-confidence ...

The Regulation Of Digital Trade In The Tpp: New Trade Rules For The Digital Age, Henry S. Gao

Research Collection School Of Law

With the rapid development of the internet, electronic commerce is also gaining importance in international trade. However, the rules governing digital trade is still largely lacking. While WTO Members have been discussing the regulation of electronic commerce since the last century, little progress has been made. Instead, most of the progresses are made in various free trade agreements, especially those sponsored by the United States. This article starts with a review of the efforts to regulate e-commerce in the WTO, as well as what the pre-TPP US FTAs have achieved so far, followed by a critical appraisal of the achievements ...

Antitrust And The Design Of Production, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output ...

Georgetown Law Faculty Publications and Other Works

Increasingly, cable and satellite TV services (known as “MVPDs”) seek to acquire upstream programming creators, as illustrated by AT&T’s recent merger with Time-Warner. At the same time, the pay-TV industry is rife with “most-favored nation” (MFN) agreements, which can sharply constrict the competitive process. The most problematic variety, so-called “unconditional” MFNs, raise serious antitrust concerns, as they may forestall effective entry by new streaming-based platforms; penalize pro-competitive deviations from the status quo; and facilitate de facto coordination among integrated MVPDs.

While vertical mergers in the industry have received significant antitrust attention, the MFN concerns are interrelated. Problematic MFNs may naturally induce a double marginalization problem, even if the parties are otherwise capable of contracting around it. This creates a strong motivation for integration, but it also raises a question as to whether a merger is the only way to avoid double marginalization. Further, MFNs might compel ...

#Lolnothingmatters,
Chris Sagers2018
Cleveland-Marshall College of Law, Cleveland State University

#Lolnothingmatters, Chris Sagers

Law Faculty Articles and Essays

Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the contretemps currently enjoying some attention in the popular press, imagine that antitrust problems are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself. The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay. Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-fault rule to control concentration for its own ...

Making Up Insider Trading Law As You Go, Peter J. Henning

Washington University Journal of Law & Policy

This article, by Professor Peter J. Henning of the Wayne State University Law School, analyzes the haphazard development of insider trading law in the courts. Henning argues that despite Congressional inaction and little by the way of SEC rulemaking, the judiciary has developed a fairly stable set of rules prohibiting insider trading. Henning argues that Salman v. United States demonstrates the Supreme Court’s satisfaction with, or at least apathy to, the current approach in this area of the law. Finally, Henning suggests that without additional political impetus, Congress is unlikely to step in to clarify insider trading law, thus ...

“Maximalism With An Experimental Twist”: Insider Trading Law At The Supreme Court, Zachary J. Gubler

Washington University Journal of Law & Policy

This article, by Professor Zachary J. Gubler of Arizona State University’s Sandra Day O’Connor College of Law, examines the shape of the Supreme Court’s insider trading jurisprudence. Gubler argues that the Court ought to adopt an approach of “maximalism with an experimental twist” – a combination of broad-based opinions that go beyond the facts of a particular case, as well as a standards-based approach to assessing policy assumptions of the lower courts. Gubler uses this framework to evaluate the Court’s insider trading jurisprudence and argues that the Roberts Court missed an opportunity in Salman v. United States ...